Pomaquiza v. Sessions et al

Filing 16

ORDER DISMISSING COMPLAINT FOR LACK OF FEDERAL JURISDICTION. For the reasons stated in the attached order, the complaint (Doc. # 1 ) is DISMISSED for lack of federal jurisdiction. Plaintiff's motion for a preliminary injunction and temporary restraining order (Doc. # 2 ) is DENIED as moot in light of the dismissal of the complaint. The Clerk of Court shall close this case. It is so ordered. Signed by Judge Jeffrey A. Meyer on 10/3/17. (Zuckier, C.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

PEDRO POMAQUIZA,
Plaintiff,
v.

No. 3:17-cv-01549 (JAM)

JEFFERSON SESSIONS, III, et al.,
Defendants.

ORDER DISMISSING COMPLAINT FOR LACK OF FEDERAL JURISDICTION
More than ten million immigrants live in the United States without a legal right to do so.
Many have been here for decades after they came here as children or youth. They have raised
families, worked hard, paid taxes, and never committed a crime.
What to do about this has long vexed Congress and the Executive Branch. Some lawabiding immigrants get to stay. Some have to go. And it is not always clear why some get to stay
while others must go.
Four weeks ago, plaintiff Pedro Pomaquiza was told he must go. He must go back to his
native country of Ecuador. It is true that he has no legal right to be here and has long been
subject to a final order of removal. Yet since coming to the United States 16 years ago he has no
criminal history, has built a construction business, and raised a family with five children.
Year after year the government allowed Mr. Pomaquiza to stay. This year it suddenly
changed its mind. It did so without explaining why, and it told him he had just 30 days to leave
his life and his family behind.
Mr. Pomaquiza now asks the Court for relief. But I cannot help him. Congress has very
clearly divested the federal district courts of jurisdiction to review claims like his that arise from
the execution of an order of removal. Whatever the equities are for Mr. Pomaquiza and his
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family, they are for the political branches to consider (or re-consider), and I must dismiss this
case for lack of jurisdiction.
BACKGROUND
The facts in this case are not in dispute. Plaintiff Pedro Pomaquiza is a native of Ecuador,
where he became an orphan at the age of ten. After living in poverty and working for food as a
teenager, Mr. Pomaquiza entered the United States without inspection in January 2001.
Since coming to the United States, Mr. Pomaquiza has no criminal history. He has
married and has five children, four of whom are United States citizens. He lives in Waterbury,
Connecticut, and he supports his family through his construction business.
Mr. Pomaquiza’s immigration troubles began more than ten years ago when he was in
Vermont to help some of his construction employees, and he had the misfortune to be spotted by
agents of U.S. Immigration and Customs Enforcement (“ICE”). He was placed into removal
proceedings in Boston, Massachusetts, and these proceedings resulted in a final order of removal.
Mr. Pomaquiza appealed but he was denied relief by both the Board of Immigration Appeals and
the U.S. Court of Appeals for the First Circuit.
Now subject to a final order of removal, Mr. Pomaquiza asked for a discretionary stay of
removal. In 2012, he applied for a stay of removal by filing a Form I-246, which pursuant to 8
CFR § 241.6 allows an alien subject to a final order of removal to apply for a stay of removal.
The stay was granted for one year, and Mr. Pomaquiza thereafter applied for and received a stay
of removal each year from 2013 through 2016.
On August 3, 2017, Mr. Pomaquiza filed again to renew the stay of removal. But on
September 5, 2017, the application was denied. The government ordered Mr. Pomaquiza to leave
the country by October 5, 2017.

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Mr. Pomaquiza was not told why his application for a stay of removal was denied. When
I asked counsel for the government why the application had been denied, I was told that there
had been a recent shift in the federal government’s immigration enforcement priorities as
reflected in the so-called “Kelly Memorandum.”1 That memorandum provides in part that
“regardless of the basis of removability, Department personnel should prioritize removable aliens
who: …. (6) are subject to a final order of removal but have not complied with their legal
obligation to depart the United States.” Kelly Memorandum at 2.
On September 14, 2017, Mr. Pomaquiza filed a federal court complaint seeking review of
the denial of his application for a stay of removal. He does not challenge the final order of
removal itself. Instead, he contends that the denial of his application for a stay of removal
violated the Administrative Procedure Act and his constitutional right to due process of law. He
has filed a motion for a preliminary injunction and a temporary restraining order to prevent his
removal until he has the chance to litigate the claims set forth in his complaint. The government
opposes the motion for preliminary relief on grounds that the Court lacks subject matter
jurisdiction over Mr. Pomaquiza’s challenge to the denial of his application for a stay of
removal.
DISCUSSION
A federal court must dismiss an action if at any time it determines that it lacks subject
matter jurisdiction over a claim. See Fed. R. Civ. P. 12(h)(3). The federal courts do not decide
for themselves what their jurisdiction shall be. It is Congress who controls the subject matter

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See Memoranda from Secretary of Homeland Security John Kelly on Enforcement of the Immigration
Laws to Serve the National Interest (Feb. 20, 2017),
https://www.dhs.gov/sites/default/files/publications/17_0220_S1_Enforcement-of-the-Immigration-Laws-to-Servethe-National-Interest.pdf).

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jurisdiction of the federal courts. See U.S. Const. Art. III, § 1; Kontrick v. Ryan, 540 U.S. 443,
453 (2004).
Congress has decreed that a federal district court does not have jurisdiction over the type
of claim that Mr. Pomaquiza pursues here: a claim that arises from the government’s decision to
execute an order of removal against him. Congress has by statute provided that: “Except as
provided in this section and notwithstanding any other provision of law, … no court shall have
jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or
action by the Attorney General to commence proceedings, adjudicate cases, or execute removal
orders against any alien under this chapter.” 8 U.S.C. § 1252(g) (emphasis added); see also Reno
v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999) (holding that § 1252(g)
precludes review for “three discrete actions that the Attorney General may take: her ‘decision or
action’ to ‘commence proceedings, adjudicate cases, or execute removal orders’”).
A challenge to the government’s decision to deny a stay of a final order of removal falls
squarely within the statute, because a denial of a stay is part-and-parcel of the decision to execute
a removal order. The challenge to a denial of a stay of removal is a “claim … arising from the
decision or action … to … execute removal orders.” 8 U.S.C. § 1252(g). As the Eighth Circuit
has recently noted, “a claim that is connected directly and immediately to a decision to execute a
removal order arises from that decision.” Silva v. United States, 866 F.3d 938, 940 (8th Cir.
2017) (internal quotations omitted).
Although the Second Circuit has not directly addressed this issue, numerous federal
courts of appeal have similarly concluded that § 1252(g) precludes jurisdiction over a claim that
challenges the government’s denial of a stay of an order of removal. See Barrios v. Attorney
Gen. of U.S, 452 F. App’x 196, 198 (3d Cir. 2011); McCloskey v. Keisler, 248 F. App’x 915, 917

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(10th Cir. 2007); Moussa v. Jenifer, 389 F.3d 550, 554 (6th Cir. 2004); Sharif v. Ashcroft, 280
F.3d 786, 787 (7th Cir. 2002). The government cites yet more district court rulings to the same
effect, and Mr. Pomaquiza does not cite any contrary cases concerning the scope of § 1252(g).
Nor is the reasoning any different if Mr. Pomaquiza’s claim is re-framed as a challenge to
the government’s procedures that govern whether to deny a stay of removal, as distinct from a
direct challenge to the decision itself denying a stay of removal. Both types of claims equally
arise from the decision to execute the order of removal against Mr. Pomaquiza.
Mr. Pomaquiza insists that I may conduct review under the Administrative Procedure Act
(APA), 5 U.S.C. § 701 et al. But the APA makes clear that it does not apply if “statutes preclude
judicial review.” 5 U.S.C. § 701(a). Because 8 U.S.C. § 1252(g) precludes judicial review, the
APA has no role here.
Mr. Pomaquiza also suggests that the Court may grant mandamus pursuant to 28 U.S.C. §
1361. But the mandamus statute does not provide an independent basis for a federal court’s
jurisdiction if jurisdiction is otherwise lacking. See Delgado v. Quarantillo, 643 F.3d 52, 56 (2d
Cir. 2011) (per curiam) (no jurisdiction under either the APA or mandamus over alien’s court
challenge where a separate immigration statute independently precluded judicial review).
Mr. Pomaquiza relies on the Supreme Court’s decision in Kucana v. Holder, 558 U.S.
233 (2010). But Kucana did not mention or interpret 8 U.S.C. § 1252(g). Instead, it interpreted
very different language from another immigration statute (8 U.S.C. § 1252(a)(2)(B)(ii)) that
limits judicial review of discretionary decisions of the Attorney General or the Secretary of
Homeland Security. Because that statute is not at issue in the case now before me and does not
have language that is similar to the text of 8 U.S.C. § 1252(g), Kucana is irrelevant to Mr.
Pomaquiza’s case. Moreover, to the extent that Kucana suggests that Congress must speak

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clearly when it limits the jurisdiction of the federal courts, Congress has done so here. By
enacting 8 U.S.C. § 1252(g), Congress has clearly precluded jurisdiction over claims arising
from a decision to execute a removal order.
Lastly, to the extent that Mr. Pomaquiza contends that the denial of a stay of removal
violated his constitutional right to due process, any jurisdiction over such a claim would vest—if
at all—in the first instance with a federal court of appeals rather than with a federal district court.
See, e.g., Ajlani v. Chertoff, 545 F.3d 229, 235 (2d Cir. 2008). I have no jurisdiction over Mr.
Pomaquiza’s complaint.
CONCLUSION
The complaint is DISMISSED for lack of federal jurisdiction. Plaintiff’s motion for a
preliminary injunction and temporary restraining order is DENIED as moot in light of the
dismissal of the complaint. The Clerk of Court shall close this case.
It is so ordered.
Dated at New Haven this 3rd day of October 2017.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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